IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. W03-50641-J IN THE CRIMINAL DISTRICT COURT NO. 3
FROM DALLAS COUNTY
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault and sentenced to twenty-seven (27) years' imprisonment. The Fifth Court of Appeals affirmed his conviction. McCray v. State, No. 05-04-00967-CR (Tex. App. - Dallas, Aug. 18, 2005, no pet.).
Applicant contends that his trial counsel rendered ineffective assistance because counsel failed to contact or subpoena two potential witnesses as requested by Applicant. Specifically, counsel failed to contact Karen Frye and Glenn Lilly, and counsel did not return their calls when they attempted to contact counsel. They were available and willing to testify. They would have testified that Applicant never had a knife or baseball bat as alleged and that the complainant had assaulted Applicant several days before the offense for which Applicant was convicted.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact as to whether counsel failed to contact potential witnesses requested by Applicant, whether the witnesses were available and willing to testify, and whether the testimony of such witnesses would have been of benefit to the defense. The court shall make further findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within ninety (90) days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within one hundred twenty (120) days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: October 4, 2006
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